[2004] KEHC 743 (KLR)
The court found that there is no legal requirement mandating the jurat and attestation to appear on the same page as the body of the affidavit, and the explanation for the separation due to computer printout was satisfactory. Regarding the time for filing, the judge clarified that although the record showed 2 days,...
Source-derived case information.
- Citation
- [2004] KEHC 743 (KLR)
- Parties
- Applicant: James Ogata Nyantenga; Respondent: Keroka Town Council; Respondent: Town Clerk Keroka Town Council
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 66 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- K Bauni
- Legal Topics
- Affidavit Formal Requirements, Preliminary Objection, Contempt Proceedings, Filing Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ogata Nyantenga
Applicant
Keroka Town Council
Respondent
Town Clerk Keroka Town Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the affidavit in support is defective for having the jurat on a separate page.
- 2 Whether the application was filed out of time contrary to the court's order.
Ratio Decidendi
The court found that there is no legal requirement mandating the jurat and attestation to appear on the same page as the body of the affidavit, and the explanation for the separation due to computer printout was satisfactory. Regarding the time for filing, the judge clarified that although the record showed 2 days, this was a clerical error, and the applicant was actually granted 21 days. The judge amended the record accordingly. Therefore, the preliminary objection lacked merit and was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII MISC. APPL. NO.66 OF 2004
JAMES OGATA NYANTENGA ………………………………… APPLICANT VERSUS KEROKA TOWN COUNCIL ) TOWN CLERK KEROKA TOWN COUNCIL ) ……… INTERESTED PARTYCONTEMNOR
RULING
Mr. Kerosi raised a Preliminary Objection on two grounds. First that the support affidavit of James Ogata Nyantenga does not have the names of the jurat on the same page. It is on a separate page.
Secondly he stated that application was filed out of time as when the court granted leave to file contempt proceedings it ordered application be filed within 2 days. Application was filed after 21 days.
Mr. Momanyi opposed the Preliminary Objection. He explained that the affidavit in support was a Computer Print out and the names of jurat could not fit in the same page. Attestian was therefore on the next page.
As to the time of filing the application be said the court gave 21 days and not 2 days. There was possibly an order on record.
I have considered the application. Mr. Kerosi did not tell the court the provisions of the law which requires the attestation and name of jurat to be on the same page as the main body of the affidavit. There is no such requirement Mr. Momanyi explained why the attestation and name of jurat are on a different page. The explanation is satisfactory. As to the time given by court to file application it is the record in Misc. Application No.64 of 2004 shows that applicant was given 2 days to file application. However this remedy was an error. I am the one who granted leave and I recall clearly giving the applicant 21 days to file his application. Apparently I recorded 2 days instead of 21 days. I have since amended the record today in that file to read 21 days.
In the circumstances I find Preliminary Objection has no merit. The suit is dismissed.
KABURU BAUNI JUDGE 22/11/04 Mr. Momanyi for Applicant N/A for Respondent.
KABURU BAUNI JUDGE